THE KERALA LAW ACADEMY LAW COLLEGE

SYNOPSIS

MEDICAL NEGLIGENCE IN INDIA WITH SPECIAL REFERENCE

TO CONSUMER PROTECTION ACT 1986

SUBMITTED BY

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 INTRODUCTION

Doctors play an important role in our daily life. They are equated with
being close to god like by the educated and the non-educated alike, due to the
part they play in saving lives .The medical profession is considered to be a
noble profession all over the world. A doctor’s work is that of responsibility,
responsibility towards his patients, to make a proper diagnosis and provide
adequate treatment accordingly and a duty towards the families of the patients
concerned, to give of their best, towards curing and healing their loved ones.
Not only do doctors help in reducing pain and recovery from disease, they
also play an important role in providing for those patients who cannot be
cured with treatment to help lessen the symptoms and effects of their
condition. It is important to understand that in-spite of a lot of sincere efforts,
in some cases, doctors are unable to save a patient, but it is not by fault of a
doctor. He has his own limitations as a human being and even the most
eminent doctor, could make an error in identifying and diagnosing the true
nature of an illness. But if this happens due to the negligence in providing
treatment or in taking care of the patient then it is matter of serious attention.
In the present situation, we come across such news about the
carelessness of the medical practitioners in providing treatment or in handling
a patient that sometimes it becomes difficult for a common man to trust any
doctor. Along with these issues there are number of other complaints that
patients have against the doctors like heavy charges for treatment and
hospitalization without proper facilities, prescription of unnecessary drugs,
improper care of medical equipment before and after use, no proper system
for disposal of waste, inappropriate use of medical technology, lack of
transparency in providing information about the disease to the patients,
unapproachable during emergencies and inadequate post-operative care.

With the new trends of corporate culture, doctors and hospitals have also
started adopting the same culture forgetting the old culture of service to
humanity. The traditional notion of a family doctor‘, is dying out, which was
that of a family member and he was aware of not only the physical health but

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also the mental health of the family members. With this change, the intimacy
in the relationship between patient and doctors in fading away and more than
a noble service it is becoming a profit making business. The sacredness of this
relationship which was based on mutual trust, faith and understanding is
getting replaced by corporate culture and cut throat competition.

The changes are not limited to this alone. With the new trends, new
laws to check the duties and responsibilities of these people in noble
profession have also been introduced. The main purpose behind this is to
bring about clarity, honesty, to check the unfair practices and to bring medical
negligence under control.

STATEMENT OF THE PROBLEM

Medical profession is one of the dignified professions among all other

profession in India. For a patient, the doctor is like God, and is infallible. But
that is what the patient thinks. In reality, Doctors may commit a mistake.
Doctors may be negligent. The acts of negligence by doctors may give rise to
a much bigger problem. It is not easy to determine the exact cause of
increased medical negligence litigation in India.

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 OBJECTIVES OF STUDY
 To study Consumer Protection Act with reference to Medical
Negligence and identify whether provisions of Consumer Protection
Act are adequate to provide effective justice to the victims of Medical
Negligence.
 To analyse and evaluate role of judiciary on Medical Negligence and to
discuss the principles applied for determining liability on Medical
Practitioners for Medical Negligence.
 To study legislative provisions for reducing number of Medical
Negligence instances and rendering proper and effective remedy to
victim of Medical Negligence.

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 HYPOTHESIS
1. Legislative measures including the Consumer Protection Act are
inadequate for giving justice to the victims of Medical Negligence.
2. The Medical council of India is not effective in taking disciplinary
action against guilty doctors in Medical Negligence.
3. Burden of proof on patient to prove Medical Negligence is a hurdle
to address justice to the victims of Medical Negligence.
4. The Judiciary is not playing a pivotal role in successfully providing
justice to the victims of Medical Negligence in India.

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 REVIEW OF LITERATURE
Medical Negligence and the Law in India, written by a Physician Tapas
Kumar Koley cover concept of Medical Negligence important aspects relating
to it. The Book has focused on doctor patient relationship. This book also
deals with various Laws relating litigation of Medical Negligence like Indian
Penal code, Law of Tort, consumer Protection Act. Author also covers
potential area of litigation.

Lyon’s Medical Jurisprudence and Toxicology, This popular book was first
written by Lyon in 1856. This book has the specialty of explaining the various
relevant laws in detail with the latest case laws.

Law and Medicine, This book is written by k. Kannan a High Court judge.
This book deals with Medical Education, Medical Ethics and role of
consenting detail. Author also discusses the role of the doctor in civil as well
as criminal cases. The subject has been discussed in great detail and covers
wide case law. Medical Negligence is rightly discussed separately as tort and
as a penal offence and a special reference has been made to the failure of
sterilization in relation to alleged negligence.

Consumer is King,Rajyalakshmi Rao is the author of this book This book

provides a brief history of the Consumer protection movement in the country.
It also provides a three-tier structure of the Consumer Protection Act. This
book is meant for the ordinary citizen and his day-to-day concerns. It provides
the basic information about the procedural aspects in filing a complaint with
the Consumer Forum and explains how the remedy can be made simple.

Medical and Toxicology, Modi ,the author reviews the legal procedures in
criminal courts of medical jurisprudence, including the inquest procedures, the
difficulties encountered in detecting crime, medical evidence, rules for

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presenting evidence, and the powers of Criminal Courts. The book explains
the various Medico-Legal aspects.

Commentary on Consumer Protection Act, 1986, Barowalia , the Author

has explained each and every provision of the Consumer Protection Act in
detail and incorporated the rules framed by the Central Government and the
State Governments from time to time. The laws lay down by the Supreme
Court, National Commission and State Commissions have been incorporated.

Consumer Protection Law and Practice, Aggarwal studied on consumer

protection contains the latest judgments of the Supreme Court, National
Commission and State Commissions. The contemporary legislations and case
laws in other parts of the world, especially in the United States and the United
Kingdom, have also been referred to appropriately. This book also contains
the latest amendments to the Consumer Protection Act. While explaining the
provisions, the author has also expressed his own view points.

Law of Consumer Protection: Principles and Practice, in this book, Singh

the Author examined the basic concepts and definitions in the context of
established legal principles and also their applied version. The book deals with
different kinds of consumer goods and services and analyses them subject
wise on the basis of decisions delivered by the National Commission and State
Commissions.

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 SCHEME OF STUDY
1. INTRODUCTION
2. MEDICAL NEGLIGENCE:CONCEPTUAL ANALYSIS AND
HISTORICAL DEVELOPMENT.

3. INTERPRETATION OF LAWS RELATING TO MEDICAL

NEGLIGENCE: ROLE OF JUDICIARY.

4. REDRESSAL MECHANISM UNDER CONSUMER

PROTECTION ACT: A CRITICAL APPRAISAL.

5. COMPARATIVE ANALYSIS.
6. CONCLUSION

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 CHAPTER - I
MEDICAL NEGLIGENCE:CONCEPTUAL ANALYSIS AND
HISTORICAL DEVELOPMENT.

1.1. Introduction:
Medical Negligence and malpractices by doctors are grey areas in
health care where legal issues arise. Medical Negligence is not new concept
but it has its existence in the society since long.Researcher divided this
chapter in to two parts. First part related to conceptual analysis and second
part provides historical evolution of punishment for medical negligence. The
researcher has studied the concept of Medical Negligence and punishment
awarded for it from ancient period to current scenario. For this purpose,
researcher has divided the period in to three era, i.e. Ancient and medieval
period ,Pre Constitutional period and post- Constitutional period. In this
chapter researcher has analysed concept of profession, professional
Negligence, Medical Negligence. Researcher also focused on various concepts
relating to Medical Negligence such as interlink between Right to Health Care
and medical negligence, difference between medical negligence and medical
malpractice ,and various kind of Negligence.

1.2 Medical Negligence: Conceptual Analysis

Some concepts are interlinked with the term medical negligence.
Following some concepts are necessary to analysis for better understanding of
medical negligence concept.

1.1.1Negligence: Meaning and Definition

The word ‗negligence‘ has been derived from a Latin word
‗Negligentia‘ which is synonymous to carelessness, heedlessness, neglector
oversight. For a lay man, failure in following expected duties with care and
responsibility is the meaning of the said word negligence. The carelessness on
the part of a concerned individual is intentional or nonintentional. We could
come across shades of the use of this word in different context like active

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Negligence, comparative Negligence, passive Negligence, Gross Negligence,
Criminal Negligence, Wilful or reckless Negligence.
1.1.1. Definition of Profession, Medical Profession and Professional
Negligence:
A professional is a person involved in providing some kind of services
to the other people on the basis of the qualifications and knowledge he has
acquired.1 It is expected from a professional to provide best possible services
against the charges paid to him with absolute responsibility, accountability
and ethics. The nature of work performed by professionals is extremely
specialized, and it requires more mental effort as compare to physical.2
Generally medical service includes the service rendered by the
hospitals (both government and private), nursing homes, health centres,
clinics medical practitioners (physicians, surgeons, and these practitioners like
Ayurveda, homeopathic or any other systems of medicine or surgery),
chemist, diagnostic centres, paramedical staff, nursing, staff and other allied
staff. According to the New International Webster‘s Comprehensive
Dictionary of the English language, doctor means a qualified practitioner of
medicine or surgery in any of its branches and patient means a person
undergoing treatment for disease or injury.
1.1.3 Right to Health Care and Medical Negligence: A Interlinked
The widely acceptable definition of health is that given by the WHO in
the preamble3 of its constitution.4The Constitution of India does not provide
for the right to health as a fundamental right. The Constitution directs the state
to take measures to improve the condition of health care of the people. WHO
has radically expanded the scope of health and by extension, the role and
responsibility of health professionals also increase. The right to health care
1
The word profession has been derived from the Latin word ‗Professional‘ or ‗Profession‘
which means,
‗a solemn declaration‘ or ‗an occupation which one professes to be skilled in‘ or ‗a body of
persons engaged in some occupation‘
2
It has been defined by the Oxford Advanced Learner‘s Dictionary as ‗a paid occupation,
especially one that requires advanced education and training.
3
Preamble to the Constitution of the World Health Organization as adopted by the
International Health Conference, New York, 19–22 June 1946; signed on 22 July 1947 by the
representatives of 61 States and entered into force on 7 April 1948.
4
According to World Health Organization, ‗Health is a state of complete physical, mental
and social wellbeing and not merely the absence of disease.‘

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requires the establishment of the health facilities, goods medical services, such
as hospitals, doctors and drugs, that are of good quality and available to all, on
an equal basis. They must be affordable to everyone. These facilities must
provide preventive, creative, palliative and rehabilitative health services,
including regular screening programs, appropriate treatment of prevalent
diseases, illnesses, injuries and disabilities, both physical and mental, and all
necessary medications.5

1.1.4. Medical Negligence: Definition

Literally, the word medical means something relating to the science of
medicine, or to the treatment of illness and injuries. The word negligence
means failure to take proper care over something. In the present context,
Medical Negligence would legally means a breach of a duty of care, which
results in damage.6 It is responsibility of a plaintiff or patient to establish all
the following elements for a successful claim-
i. Existence of a legal duty- Whenever a doctor ready to treat the
patient, he become liable of this legal duty.
ii. Breach of legal duty- doctor fails to provide the accepted standard
of care.
iii. The breach caused an injury- There is injury to the patient as a
result of breach of legal duty by doctor
iv. Damage- There may be a physical injury or emotional loss of the
patient.

1.1.3. Medical Malpractice and Medical Negligence: Differential

Approach
Medical malpractice is a wilful and intentional treatment by medical
professional which does not meet the standard of care and results in harm to
the patient. This includes failing to take a necessary action or taking an
inappropriate action. It has an element of ‗intent ‘that Medical Negligence
does not have in it. The medical practitioner knew he should have done
something to treat the patient but he failed to do so knowing that his failure

5
U.N. Committee on Economic, Social and Cultural Rights(CESCR), General Comment 14
(GC 14), Par 11.
6
Lyon, Medical Jurisprudence and Toxicology, (Prof. Tedder and LT. COL. Abhijit Rudra
p.307 11thed 2009).

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may result in harm to the patient. It was not intentional in that he wanted to
harm the patient but it was intentional because he knew that by doing so the
risk of harm was present.
1.1.6. Kinds of Negligence:
There are various forms of Negligence which may be considered in
deciding the cases of medical negligence. In reality, negligence is a
comprehensive term. There are many types of negligence. The most common
types of negligence are as follows:
1. Gross of negligence
2. Comparative Negligence
3. Contributory negligence
4. Composite negligence
5. Corporate Negligence
1.3. Medical Negligence and Nature of Its punishment: Historical
Evaluation
History of medicine has its own importance. Any object or subject has
a history and to understand it correctly, one must study its history, everything
existing has a past and to understand its present, one must delve deep into its
past, Moore says:―The study of history is worth pursuing when the
consideration of the past can be made useful to us in the present7‖. Knowledge
of history is useful in many ways. It guides us in the right directions by
showing the positive and negative aspects of the subject in hand. Historical
study of a subject gives in nutshell the wisdom of the past without undergoing
the hardships the ancients had to suffer to find out the truth.26

1.3.1. During Ancient and Medieval Period:

History has witnessed the progress and advancement in the field of medical
science that has its origin in the ancient Indian culture. It is evident from that
this progress brings about the miraculous results that are beyond the realm of
a common man. In earlier civilization if the patient died during an operation a
doctor's hands were cut off; Likewise in Islamic Law, Mosaic Law,
CharakaSamhita, SusanthaSamhita, Manusmriti, Kautilya‘sArathashasra,
7
G.N.Mukhopadhyaya ,History of Indian Medicine, , Vol.,I,p.44.(Calcutta
University, 1926). 26 Ibid.

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yajnavllga‘s, smriti issue of Medical Negligence could be found. The
renowned medical historian Henryites 8 believed that public health facilities of
Mohenjodaro were superior to those of any other community of the ancient
orient. Since the ancient times, certain duties and responsibilities have been
cast on physicians.
1.3.2 During Pre-Constitutional Period:
The history of 19th century where the new trends introduced in
England got automatically transcended down to India; Medical science was no
exception to this. The physicians and the surgeons initially were bound by the
rules of East India Company but with the transition of power, they got
connected with the British power. When a branch of medical science got
recognized and the professionals actually visited India and proved their
knowledge successfully, the Indians were impressed and motivated to follow
the footsteps. Further the establishment of hospitals and provision of advanced
medical facilities made available in the India obviously raised the curiosity of
the talented brains from India. Competing with Western Europe, the Indian
brains also got busy in formulating the well organised, well qualified and well
skilled system of medical or health care facilities in India.9
1.3.3. During Post Constitutional Period.
During the Constitutional period of India efforts were undertaken by
the Government of India to protect the interest of the common man.In the
initial stages it was felt that maintaining law and order in a state is the only
matter of serious attention for the state government. But with emerging new
trends a concept of welfare state in to practice. Under this concept looking
after the welfare of the people is matter of concern for state. Hence providing
better health facilities is one of the important issues concerning the state
government. The five year plan introduced by the government of India is the
guidelines for every state to work out their own plan for their individual state.
It is mandatory on the part of the state government to provide the people with
best possible health facilities. The basic principles that the Constitution of
India had adopted and strongly believes in are equality, secularism, freedom,
8
H. E. Sigerist, A History of Medicine Early Greek, Hindu and Persian medicine,p.142,
(1961).
9
M. M. Singh, U. S.Garg,& P. Arora, Law applicable to medical practice and hospitals in
India 1(1) ,Int J Res Foundation HospHealthcAdm, 19-24(2013), available at
http://www.imalko.in/downloads/laws.pdflast seen on 12/10/2017 .

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justice and the dignity of the individual. The main objectives of Constitution
are removal of all forms of inequality, ignorance, ill-health and to bring about
better standard of living and health for all the citizens.
Several regulatory bodies were established to monitor and maintain the
standard of medical professional education and medical ethics all over the
country. The important bodies‘ are-
The Medical Council of India (in addition to the Medical Council
of India each state has its own state medical councils).
The Nursing Council of India.
The Dental Council of India.
Pharmaceutical Council of India.

1.3.3.1. Constitutional Provision:

Constitution of India does not provide any specific Article relating to
medical profession or medical negligence nor it give specific remedy to the
victim of medical negligence. But there are some Articles which ultimately
protect the interest of patient and provide proper remedy.

1. Right to health- a fundamental right.

There are no special rights granted to the patients by the Constitution
of India. The rights of the patient are derived from the obligations of the heath
care provider.
Constitution of India grants right to life to all the citizens of India. 10 But
unless there is right to health and to medical treatment, this right to life will
have no existence in the real sense. If an individual is not assured of medical
and health care, the right to life will not be protected. In addition, to the
citizen of India Six fundamental freedoms granted under the Constitution of
India11but they are restricted on the grounds mentioned in clause (2) to (6).
But an individual is able to enjoy these freedoms only if an individual has
good health, and is able to live a dignified life. An individual must be free
from all kinds of diseases and exploitation which is prescribed by the Article
10
The Article 21 of the Indian Constitution.
11
Article 19 of the Indian Constitution.

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21. Any kind of breach by the health care provider can be made liable for
Medical Negligence.12Under Article 19(6) public health is one of the
restricting factors with respect to Article 19(1) (g) which provides right to
practice any profession or carry on any occupation, trade or business to all
citizen of India. According to the maxim of ubi jus ibiremedium rights without
remedy has no importance.

1. Right to Health and Directive principles:

The Constitution of India does not provide for the right to health as a
fundamental right. The Constitution directs the state to take measures to
improve the condition of health care of the people. Thus the preamble to the
Constitution of India, inter alia, seeks to secure for all its citizens justice-
social and economic. It provides a framework for the achievement of the
objectives laid down in the preamble. The preamble has been amplified and
elaborated in the Directive Principles of State policy. 13Constitution of India
under part IV provides certain Directive Principles of State policy with respect
to the standard of living of the citizens, social and financial equality, provision
of basic health care facilities and provision of nutritious food.14. Likewise, Part
III and IV of the Constitution of India i.e. Fundamental Rights and Directive
Principles of State Policy respectively not provide any specific provision
relating to medical negligence. But it was incorporated by the judiciary.

2. Interpretation of Indian Constitutional Provisions relating to

Right to Health Care by Judiciary:
As far as judiciary is concern it has considered various aspects of
Medical Negligence and widened the meaning of it.The constitutional scheme
for the protection of health contained a serious lacuna, which was later
12
Sharma, M. Kumar, Right to Health and Medical Care as a Fundamental Right,
P.255,A.I.R. Journal, (2005).
13
H. K. Varun,Right to Health, Legal India legal news and law resource portal, available at
https://www.legalindia.com/right-to-health/ last seen on 17-10- 2017.
14
Article 47 of the constitution of India provides that ,It is the ‗Duty of the State to raise the
level of nutrition and the standard of living and to improve public health‘. 51 The State shall
regard the raising of the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and, in particular, the State shall
endeavor to bring about prohibition of the consumption except for medicinal purpose of
intoxicating drinks and of drugs which are injurious to health.

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removed by judicial creativity. Supreme Court of India expanded the scope of
Article 21 of the Constitution of India so as to sub serve the Right to health
and Medicare in it.The Supreme Court has also made attempts to interpret the
right to life so as to safeguard the interests of the common man for their health
care. This attempt of the Supreme Court facilitates the citizen to lead life with
dignity, with good quality along with all human needs including food,
clothing, shelter, safe drinking water, education and health care.
The Supreme Court of India examined the issue of medical help which
is Constitutional Right under Art.21, 41 and 47 of the Constitution of India, in
the State of Punjab v. Ram LubhayaBagga15 and the Court further stated that
right of one person is linked with the duty of the other person, may it be
employer of any government or higher authority. Right to live as per Article
21 is an obligation on the part of the State Government. The same obligation
has been repeatedly supported in the Article 47 as the primary duty. while
widening the scope of Article 21 and governments responsibility to provide
medical aid to every person in the country held that Article 21 very clearly
and emphatically recognises the responsibility of the state to protect the right
to life of every person. Protection and preservation of human life is of utmost
importance. With this it is a prime duty of the Government hospitals to
provide medical help and all kind of assistance to protect and preserve human
life. In case there is lack of such duty on the part of a government hospital to
providing timely medical assistance it is treated as violation of human Right
to life guaranteed under Article 21to all citizens. A patient may be paid
appropriate compensation for the breach of such duty on the part of the
medical professionals under Article 21 of the Constitution. In this present case
a patient was paid a compensation of Rs. 25,000.16

In all these cases Supreme Court imposed duties on Government. It not

provides directly any specific duty of medical practitioner. In
ParamanandKatarav.Union of India 63 Supreme Court imposed certain duties
on medical practitioners. Supreme Court has declared that right to medical aid
is an integral part of right to life. It is an obligation on the state to preserve life

15
(1998) 1SCR 1120.
16
PaschimBangaKhetMazdoorSamity& Others v.State of West Bengal & Another 1996
SCC(4)37. 63AIR 1989 SC 2039.

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by extending required medical assistance. It has been observed that this case
created a new right i.e. right to get medical help. Right to medical help must
be a part of right to life under Article 21 of the constitution.
1.3.3.2 Other legal avenues:
The legal avenues available to aggrieved patients to sue against health
professionals are.
1. Law of Tort.
2. Indian Penal code 1860.
3. Consumer Protection Ac 1986.
4. Medical Council of India and Dental Council of India 1956.

Researcher has discussed provisions relating to medical negligence provided

under Law of Tort, Indian Penal code 1860,Consumer Protection Ac 1986 and
Medical Council of India and Dental Council of India 1956in III and IV
chapter i.e. Liabilities of Medical Practitioners in Medical Negligence:
Legislative Dimensions And A Thematic Study of Consumer Protection Act
Pertaining to Medical Service: An Analytical Approach Respectively.

Conclusion and Appraisal:

All above provisions indicate that Right to Health is a magnitude for every
phase of legal system. From ancient period to current era Legislature as well
judiciary are concerned for protection of rights of patient against physician.
They impose duties on physician towards patients. If physician breach their
duties they are responsible for penalty or punishment. From to passage of
time, form of penalty is changed. It is significant to study what is the current
picture of doctor patient relationship, what are the duties of medical
practitioner and patient, which act consider as wrong or offence, what are the
penalty or punishment for it. Concurrently it is equally important to analysis
the International scenario regarding provision of medical negligence. This
entire issue researcher has discussed in next chapter i.e. Liabilities of Medical
Practitioners in Medical Negligence: Legislative Dimensions.

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 CHAPTER II
INTERPRETATION OF LAWS RELATING TO MEDICAL
NEGLIGENCE: ROLE OF JUDICIARY.

Introduction
In India there is no specific legislation on deficiency in service by
medical profession. In such situation, the role of judiciary becomes more
important in protecting the rights of victim of deficiency in medical service.
According to the Supreme Court, cases both civil and criminal as well as in
Consumer Fora, are often filed against medical practitioners and hospitals
complaining of medical negligence against doctors, hospitals, or nursing
homes, hence the latter would naturally like to know about their liability.
Landmark Supreme Court judgments on medical Negligence:
Before analysing landmark cases on medical negligence two things have to be
kept in mind:
1. Medical science itself is complicated and Judges of traditional
courts or consumer forum are not experts in medical science.
Therefore there are lots of difficulties in deciding the litigations
relating to Medical Negligence. This itself often makes it somewhat
difficult for them to decide cases relating to. Furthermore in complex
issue judges has given preference to testimonies of other doctors in
the same field. Charges of negligence affect the reputation of
concerned doctor therefore there is a tendency to support their own
colleagues.
2. Judiciary has to maintain balance between right of patients and
interest of doctors. Guilty doctors should be punished according to the
provisions of law but at the same time we have to recall that doctor is
also human beings, and to commit error is human nature. If
punishment imposed on doctors for error of judgment then no doctor
can practice his vocation with equanimity. And ultimately it is harmful
to society at large.

Researcher has classified cases of medical negligence into three categories i.e.

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 1. Criminal cases under Indian Penal Code
2. Civil cases under Law of Tort
3. Civil cases under Consumer Protection Act.

7.2.1Criminal medical cases under Indian Penal Code

As discussed previous medical practitioners are prosecuted under Indian
penal code only for gross medical negligence cases. Supreme Court had
given guidelines for prosecution of medical practitioners. The complaint
was not filed for a question pertaining to the qualification of the doctor, or
that his treatment was not as that of a qualified practitioner. It was a case
for the non-availability of an oxygen cylinder.17 For the same the hospital
authorities shall be liable under civil law and therefore the doctor is not to
be proceeded under Section 304-A of the Indian Penal Code as per the
Bolam test.18Therefore the appeals were allowed and prosecution of the
accused- appellant under section 304-A of the Indian Penal Code was
repealed. Supreme Court made further following observations,
In the present case negligence is stated as under:
1. Negligence means breach of duty effected by omission to do
something which a reasonable man would do, or doing something
which a prudent and reasonable man would not do. The essential
components of negligence are three: ‗duty‘, ‗breach‘ and ‗resulting
damage‘.
2. The term negligence as per the medical profession is a treatment
undertaken differently. It is further stated that, there is a difference
between occupation negligence and professional negligence. If the
doctor performs his duties with due care and skill, he will not be held
liable for his act, just because an alternative treatment was available
for the same. The ordinary care is evaluated, while the practice
adopted for the treatment is assessed, considering the skill and
knowledge availed during the time of the incident.

17
Jacob Mathew v. State of Punjab, 2005 SCC (Cri) 1369.
18
(1957) 2 All ER 118 (QBD).

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3. A medical professional be held liable for medical negligence on two
grounds:
i. Lack of requisite skill on the part of medical practitioner which he
ought to possess.
ii. He failed to deliver his requisite skill, which he already had.
It is true that not all professionals possess the expert skill and knowledge
practicing in their respective fields. The same cannot be used to gauge the
performance of the doctor to proceed for determination of negligence.
4. To determine litigations relating medical negligence Bolamtest is
applied by the Indian judiciary.
5. On jurisprudential basis there is difference between concept of civil
negligence and criminal negligence. An act may be negligence in civil
law but not under criminal law. For an act to be determined as criminal
negligence there must be a higher degree of gross negligence. The act
not consisting of gross negligence can be taken action against, in the
civil law but cannot be prosecuted.

6. Under section 304-A of the Indian Penal Code, word ‗gross‘ is not
used, however, it is stated that for negligence and or recklessness, the
degree of negligence is to be gross. Similarly, the ‗rash or negligent
act‘ as under section 304-A of the
Indian Penal Code is to read as ‗grossly.‘
7. In order to prosecute a doctor for the act of negligence under the
criminal law, it must be proved that he acted in a manner, or failed to
perform his duties, which a prudent medical profession in ordinary
cases would do or failed to perform the same. The harm done by the
doctor must be of such nature that the same would be impending.
8. Resipsa loquitur is the rule and operates under the civil law, to
determine cases pertaining to tort and negligence. The same cannot be
pushed to determine per se the negligent liability under criminal law.
The rule has a limited standing under criminal law.

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Supreme Court also observed some precaution which Doctors/
Hospitals/nursing homes should take:
i. Hospitals should follow current practices, infrastructure, hygiene
and sterility strictly.
ii. After actual examination of patient doctors should give
prescription. Only in emergency situation doctor can give
prescription over the telephone.
iii. For acute diagnosis of illness of patient doctor should suggest
necessary test.Doctor should not be relying on mere symptoms of
disease. iv. A doctor should ordinarily get a written consent from
the patient. v. In complex issue an expert should be consulted.
vi. Full record of the diagnosis, treatment, administration of treatment
etc. should be maintained.

The principles laid hereinabove, are agreed and reaffirmed in the case of Dr.
Suresh Gupta case.19Ex abundanticautela, it is clarified that principles of the
above stated case are applied. The deceased in the present case was not
suffering from any serious ailment; the deformity for which he approached the
hospital was not complex or severe as well.
The death was caused due to ‗not introducing a cuffed endotracheal tube of
proper size as to prevent aspiration of blood from the wound in the respiratory
passage.‘ The said act of the doctor thus amounts to negligence as there was
lack of care and caution, but not gross negligence or ignorance that he shall be
held criminally liable. The doctor in the present case may be charged for tort,
however, his act shall not be deemed to be as criminal. It is difficult for the
court to contemplate the degree of negligence, for one to be convicted under
criminal law, the proof be provided to make the offence apparent. In J.J.
20
Merchant(Dr) v.ShrinathChaturvedi, case, the complainant had filed the
original petition alleging that the deceased i.e. his son 21 years of age, after
being admitted in the Breach Candy Hospital, Mumbai, expired due to
medical negligence of the hospital authorities. The deceased had returned

19
(2004) 6 SCC 422.
20
(2002) 6 SCC 635 at page 639.

21
from USA after completing his education in Business Management. He was
suffering from slip disc due to backache and accordingly was operated for the
same. Accordingly the deceased ascribed for medical negligence. The
complainant had initially filed a criminal complaint before the Mumbai,
Metropolitan Magistrate under sections 304- A/ 201 and 203 of the Indian
Penal Code for offenses respectively, for which the prosecution is pending;
further a complaint was filed before the National Commission. The said
application was rejected by the Commission, stating the universal rule of law,
which states, where a criminal proceeding is pending, proceedings of the civil
nature are to be stayed. However, the court dismissed the appeal at present.
The present case has already faced a delay of nine years and more, for
disposing the complaint. The National Commission shall, in order to avoid
prolong procedures shall follow the following steps:
i. The appointment of competent persons in all stratum, to avoid delay in
forming the Fora or the Commission is possible by implementing the
administrative directions and power.
ii. It shall monitor the limitation given to file replies and defence edition
and disposal of the complaint be firmly followed.
iii. The documents on which the parties are to be dependent on, the
Complaint and the defence edition shall be attached with the said
documents and affidavits. iv. The matter wherein for the affidavits,
cross examination is essential, certain type of questions be mentioned
to the persons who have given their affidavits.
v. If at all the Commission considers that it is necessary to conduct cross
examination of a witness either in his presence, by video or telephone
conference, the expenses shall be borne by the person who applies for
the said cross examination. The aforesaid process helps while
examining medical experts or otherwise.

According to Supreme Court medical practitioner held liable for medical

negligence on two grounds:
i. Lack of requisite skill on the part of medical practitioner which
he ought to possess.

22
 ii. He failed to deliver his requisite skill, which he already had. 21

Researcher classified cases on the basis of these two grounds.

Medical profession and consumer protection Act
In Indian Medical Association v V.P. Shanta and Others22a bench of
three- judges of the Supreme Court, observed an important issue regarding,
the conditions, in which a medical professional is rendering 'services' as per
the Consumer Protection Act, 1986 under section 2 (1) (0), and that whether
the services provided by any hospital or clinic or nursing home can as well
termed as 'service'. Depending on the decision given by the Lucknow
Development Authority, M. K. Gupta, the argument was rejected on the
grounds that, 'occupation' was covered under purview of section 2 (1) (0) and
not 'profession' within the meaning of 'service' and thus services provided by
medical authorities fall outside the meaning of section 2 (1) (0). It further
declined the other argument that 'service' studied under the Act was of the
“institutional type which was really commercial enterprise open available to
all who seek to avail thereof."
It was further held by the bench on reference to the Section 14 (1) (d)
and section 2 (1) (g), that, for the deficiency of services, compensation is to be
awarded, by application of the test for the action taken for the awarding
damages for negligence. It was further stated that the manner in which
precaution and care to be taken by the doctors was laid in the decision taken in
Bolam v.Friern Hospital Management Committee,23which was also approved
by the House of Lords and thereafter was applied in many cases. The court
further observed that, in case of matters that involve issues which require
expert's advice to be recorded, the Forum is in a position to direct the
complaining parties to move to civil court. It was further stated that in 1986
not many cases of medical negligence were filed, due to court fees to be paid
in case of damages before the civil court than no fees to be paid under the Act.
InPost Graduate Institute of Medical Education & Research,
Chandigarh v. Jaspal Singh and others24 PGI and its medical professionals
held negligent due to mismatch of blood transfusion resulting in death of

21
Jacabmethew case (2005) 6 SCC1
22
AIR 1996 SC 550.
23
2 All ER 118(QBD).
24
(1998) 4 SCC 39.

23
patient. Victim family complained in State Consumer Dispute Redressal
Commission as well as National Consumer Dispute Commission, the
Commissions declared the negligence of PGI and attending medical
professionals are liable for this case and awarded 20,000 compensation to
victim family. The held, ―It is true that her haemoglobin was brought up in
few days but her condition otherwise got deteriorated. Although she survived
for about 40 days after mismatched blood transfusion but from that it cannot
be said that there was no causal link between the mismatched transfusion on
blood and her death‖. Supreme Court further observed that ―Wrong blood
transfusion is an error which no hospital/medical professionals exercising
ordinary care would have made. Such an error is not an error of professional
judgment but in the very nature of things a sure instance of medical

negligence.‖

In Senthil Scan centre v. shanthiSridharan&Anr.25 Issue arose that

whether the Scan Centre may be held liable for failing to accurately defect
limbs reduction deformity of a child in womb on the ground of deficiency in
service under the consumer protestation Act, 1986? The state and National
Commission accepted that version and awarded a compensation of Rs 5 lakhs.
Supreme Court set aside the order of state and National Commission and
observed that ―the respondent had not led any expert evidence to controvert
the case of the Centre that the doctor who conducted the ultrasound was
highly qualified and that the ultrasound was done with due care and diligence.
There was also no evidence to show that the failure to detect the deformity
was out of any negligence on part of the doctor conducting ultrasound. In a
case, it was held by the National Consumer Dispute Redressal Commission
(NCDRC) that, failure in the IVF procedure does not amount to negligence on
part of the hospital authorities. Accordingly, no compensation was granted to
the complainant. The Commission held that "no cure/ no success are not
negligence.'' 26

Period of limitation:
25
(2011) CPJ 54(SC).
26
Dr. M. Kochar v Ispita seal 12 Dec 2017
(NCDRC).

24
According to Section 24A of the Consumer Protection Act, complaint can be
filed within two years period from the date of cause of action has arisen. If
patient not file a complaint within prescribed period then his complaint is not
maintainable and it is a defence for medical practitioner. However according
to sub-clause of the same section give power to Condon delay in reasonable
circumstances.

25
 CHAPTER III

REDRESSAL MECHANISM UNDER CONSUMER PROTECTION

ACT: A CRITICAL APPRAISAL.

Introduction:
In the last chapter researcher has discussed provisions of consumer
protection act in respect of deficiency in medical services. Researcher has
also focused on journey of judicial decisions for inclusion of medical services
under the preview of consumer protection act. After long argument between
medical association and consumer association, act applicable to medical
service for the protection of interest of patient. It is need of time to analyse
whether really interest of patient protected or not.
` Redressal Mechanisms:
As mentioned earlier medical negligence cases regulated by Law of
Tort, Law of Contract, Consumer Protection Act, Indian Medical council Act,
and Indian Penal code and exceptionally under Constitution of India. Distinct
enforcement machinery is available under different statutes. We classified
enforcement machinery according to statutes wise.
1. Constitution of India.
2. Law of Tort.
3. Indian Medical council Act.
4. Indian Penal code.
5. Consumer Protection Act.
3.2.1. Remedies under Constitution of India:
As per the provisions of Constitution of India, the patient does not
have any special rights, as their rights are derivative rights that are originated
from the responsibilities of the medical service provider. As per Article 21 of
the Constitution27 which states that right to life includes right to good health
and medical treatment as well. If any harm is caused to a person due to
negligence of any authority, which has deprived the said person right to life,
such aggrieved person may move to the Supreme Court or High Court for

27
Article 21 of the constitution says that: ―no person shall be deprived of his life or personal
liberty except according to procedure established by law‖.

26
enforcing his or her rights. Moreover, Article 19 (1) provides six fundamental
rights to citizens and the same are restricted under the clauses (2) to (6) of
Article 19 of the Constitution.

If the any citizen is deprived of the right to life and personal liberty,
the aggrieved person has the right to move to the Supreme Court under
Article 32 of the constitution or High Court by proper proceedings, for the
violation of his or her rights by the state. The courts have the power to
provide relief by way of compensation, if the state is unable to protect the
right to life and liberty of a citizen. The right to provide compensation is not
only a constitutional power under Article 21, but it gives assurance to the
citizens that they under a garb of the constitution/ the system, which
safeguards theirs rights and interests.
The Apex court further liberalized the traditional rule that: ―Only a
person who has suffered injury by reason of his legal right or interest is
entitled to seek judicial redress. The Apex Court has widened the scope of
rights of the citizens wherein a person or a group may approach the Supreme
Court or the High Court for enforcing its fundamental rights, if any person is
unable to seek justice due to illiteracy or economic constraints.
The Court is empowered to direct or order or issue writs, which
include the following writs: habeas corpus, mandamus, prohibition, quo-
warrants and certiorari; to issue the appropriate writ to ensure the
enforcement of the rights of the citizens. Similarly one may further approach
the High Court for enforcement of his or her rights.
3.2.2. Enforcement Machinery under civil Law:
The person who was negligent in performing his duties shall be
responsible for the cause of action. The purview of law of torts is broader
than that of the jurisdiction of the Supreme Court and High Court envisioned
under the Article 21 of the Constitution pertaining to the violation of right to
life and liberty. Both the Courts are not entitled to adjudicate matters for
malpractices of private health institutions. Moreover the civil court has the
authority to exercise jurisdiction over the private as well as government
health institutions under the law of tort.

27
3.2.3.Enforcementmachinery under Criminal Law:
The liability of criminal nature is enforced through criminal court
under the provisions of Indian Penal Code and Code of Criminal Procedure.
The liability under the criminal law depends on the extent of negligence,
whereas under tort the liability depends on the scale of damages. At present-
day, under criminal liability un-liquidated damages is awarded. In England
criminal courts are empowered to award compensation for conviction in any
such judgment. The Supreme Court stated that the Criminal court are
empowered to direct the accused to pay compensation to the aggrieved for the
actions suffered by the victim, according to the interpretation of Section 357
of the Code of Criminal Procedure, 1973. Such power of the criminal court is
an addition to the other sentences so passed. 28The Apex Court directed that
the criminal courts are hereby entitled to award compensation to the victims,
so that the victim or its relatives need not rush to civil courts for seeking
justice.29In this case, the victim lost his speech permanently due to the injury
suffered by him and he was awarded a compensation of Rs. 50,000.
3.2.4. Medical negligence and Medical Council of India Act:
Role of Medical Council of India:
In the United Kingdom the medical professions regulated by the General
Medical Council i.e. GMC, which is formed from the law as set in the
Medical Act, 1983. The GMC aims to safeguard the people from the medical
authorities or doctors who are unskilled in the field and inadequate to perform
the duties as per the standard stated in the Act. The Medical Council Act,
1933 was passed in the year 1993 by the Legislative Assembly, which was
repealed and a fresh Medical Council Act, 1956 was passed which extends to
whole of India.

3.2.3.Consumer Dispute Redressal Mechanisms: Three Tire System

28
Criminal court can punish a medical practitioner with two year imprisonment under
section 304A of the Indian Penal Code.
29
HariKishan and State of Haryana v. sukhbirsingh , AIR 1988 SC 2127.

28
 Remedy provided under consumer protection Act is an alternate to the
remedies provide under traditional Laws. Following are some basic aims to
constitute and Redressal agencies under the said Act:
a. To supplement the Judicial Dispute Resolution;
b. To act as a fast or quick –judicial body;
c. To provide justice by following less procedural formalities;
d. To act as Consumer friendly.

The victims of the deficiency in medical services can redress their grievances
before the consumer fora. The Consumer Protection Act ensures the
protection of rights of the consumers before any fora. There is three tier
machinery provided by the act apart from the civil court. The latest
amendments of the act have widened the scope of the act to expedite the
disposal of the complaints and apprehend the procedures to select the
members of the Consumer Forum.
The Central and the State Government is empowered30 for establishing
the quasi-judicial bodies i.e. Dispute Redressal Agencies at the Centre, State
and District level. They are National Commission (National Consumer
Disputes Redressal Commission), State Commission (State Consumer
Disputes Redressal Commission) and District Forum.
The National Commission is empowered with administration control
over all the state commissions and district fora in respective states. No lower
authority can interfere with the decisions of the quasi-judicial functions
except before the appellate or revision jurisdictions. Their control is extended
for the periodical returns, disposal, pending cases, issue instructions, etc. The
Act has entrusted powers to the central and state government to determine
rules for the redressal mechanisms under the act. The commissions shall
follow the principles of natural justice while performing their functions. For
deep and valuable study of Consumer Protection Act , we have to analyse
each form in detail.

3.2.3.1.District Forum:

30
Section 9 of The Consumer Protection Act

29
 1. Constitution of District Forum:
The District Fora is formed under the Consumer Protection Act. 31 The
said forum plays a very important role for redressal of disputes. It is the
32
lowest redressal forum among all the forums. The Fora consists of one
President, who shall be a district judge and two other members who shall
have completed 35 years of age and have the ability, integrity and adequate
knowledge or experience of at least 10 years in dealing with problems
relating to economics, law, commerce, accountancy, industry, public affairs
or administration.
The following shall not be qualified for the said forum:
i. a person who has been convicted and imprisoned for an offence
involving moral turpitude;
ii. a person who has been declared insolvent and of unsound mind; a
person who has been dismissed from the service of government or
body corporate owned by the government;
iii. a person having interest which is likely to affect prejudicially
discharge of his functions are disqualified to be appointed as the
members of District Forum. Apart from this the State Government
may also prescribed any other disqualification.
The above said members are appointed on the recommendations of a
committee consisting of President of State Commission, Secretary, Law
Department of the State and Secretary- in-charge of the Department of the
State Consumer Affairs. The term of every member of the District forum is 5
years or up to the age of 65 years. The power of appointment of the
government is administrative. The said committee is constituted under section
10 (1A) of the Act.
3. Jurisdiction:
The jurisdiction of the district forum depends upon the amount of
claim and place of filing the complaint. The same is called as
pecuniary jurisdiction and territorial jurisdiction.
i. Pecuniary Jurisdiction:

31
Section 10 of The Consumer Protection Act
32
Section 10 (1A) of The Consumer Protection Act

30
The term pecuniary means monetary suit. The district forum is entitled to
entertain matters wherein the value of the goods or services does not exceed
Rs. 20 lakhs. The jurisdiction is established by the value of the complainant‘s
relief and not by the decree or award valued. The award or decree may be
passed by the court for a higher amount than its pecuniary jurisdiction. Thus
the valuation of the dispute can be determined wherein the reliefs claimed are
included as per the averments in the complaint.

ii. Territorial Jurisdiction:

Cases that fall within the geographical areas of the district forum are called as
matters coming under territorial jurisdiction. Under the following instances
the complaints come under territorial jurisdiction:
a. the opposite party at the time of institution of the complaint
actually and voluntarily resided;
b. carries on business;
c. has a branch office;
d. personally works for gain and
e. where the cause of action, wholly or in part arises.
District Forum passed any interim order and it can pass final order
after trial on merits of the case as the said forum has the jurisdiction to do
so.Quasi- judicial powers shall be performed by the District Forum and
further possess the inherent powers to recall any order of dismissal.
Moreover, if sufficient cause is shown for non –appearance on the date if
dismissal, in order to avoid miscarriage of justice. No matters shall be
entertained by the District Forum pertaining to special law as they fall outside
the jurisdiction of Consumer Forum.
3. Consumer’s Complaint:
Before consumer form complaint can be made in respect of any goods
sold or delivered or agreed to be sold or delivered or any service provided or
agreed to be provides. Said complaint can be made by any of the following
person:
a. A Consumer to whom such goods are sold or delivered or agreed to be
sold or delivered or such service provide or agreed to be provided;

31
 b. Any recognized consumer association, whether the consumer of the
goods or service provided is member of such association or not.;
c. One or more consumers,
d. The Central or the State Government. Government can file a
complaint either in individual capacity or as representative of the
consumers in general.

All the complaints filed under Section 12 of the Act are to be filed with the
requisite fees. On receiving the complaint, the same may be rejected or
allowed after giving an opportunity of hearing to both the parties. The same
shall be decided within a period of 21 days. Once the complaint is filed before
the district forum, the same cannot be transferred before any other authority.
The same shall be decided by the forum with procedural laws.33
The definition of Complaint provided under Sec 2 (1)(c) of the consumer
Protection Act 1986.326 In the context of the medical negligence, complaint
means a written allegation made by a patient, his legal heir, or his parents or
immediate relatives, who are aggrieved by the medical service received. A
complaint contains all the details regarding deficiency in service, like lack of
oxygen Cylinder, refusal to provide medical records, wrong diagnosis etc.

4. Procedure for settlement of the Consumer Dispute:

An explanatory procedure is given under section 13 327, to settle
disputes. A copy is sent to the opposite party so that his version is heard. If
the party denies the allegations, the court shall proceed with the matter and
decide accordingly as per the provisions of the act. Also in order to establish
the liability, laboratory tests may be required. At times the defect in the goods
is to be determined by the analysis or test of goods. For which samples are to
be sent to laboratory for such analysis. The reason of such tests is to be
determined whether any defects existed in the goods as alleged. Where the
goods do not fall for the laboratory test, a copy of the complaint shall be
referred to the opposite party and seek his version within 30 days.

33
Section 12(1) of the Consumer Protection Act.

32
 If the opposite party denies all allegations, the Forum shall proceed to
decide the matter on the grounds of:
a. The evidence produced by the complaint and opposite party.
b. grant ex-parte order if opposite party omits or fails to take any action to
represent his case with in the stipulated time;
c. dismiss complaint if the complainant fails to appear before the District
Forum on the dates given;
d. To decide the case on merits if sufficient material evidence is available.

The District forum proceedings shall not be questioned in any court on

the grounds of natural justice have not followed. All the complaints shall be
heard instantly efforts shall be taken to decide the complaint within three
months and where laboratory tests are involved within a period of five
months. All the proceedings before the Forum shall be termed to be as
judicial proceeding within the meaning of Section 193 and 228 of the IPC and
the District Forum shall be deemed to be a Civil Court for the purposes of the
Section 195 of the Civil Procedure Code. According to the Act, District
forum shall have the same powers as are vested in a Civil Court under the
Civil Procedure Code 1908 while trying a suit in respect of the following
matters.

3. Remedies available under the Act.

If District forum satisfied after the proceeding conducted that there is
deficiency in medical service by hospital or medical practitioners, it shall
issue an order to the opposite party directing him to do one or more of the
following things, namely:

a. To replace the goods: the opposite parties may be directed to replace the
goods with new or similar goods, free from defects.
b. To return the price: to return the amounts to the complainant of the goods
as charged to him by the opposite party
c. To pay compensation: to direct the opposite party to give compensation to
the consumer for the losses and injuries causes due to their negligence.

33
 The term compensation states that anything given to make things
equivalent, anything given or to make good for loss, recompense,
remuneration or pay; it is not necessary that it may be monetary.
d. To remove the defects or deficiencies: the award may be directed to make
good the defects in the goods and deficiency in the goods and services.
The word
‗defective‘ denotes incomplete, faulty for want of something
essential. 34
A product is regarded as defective if it fails to suffice the
purpose for which it was purchased by the consumer. If it fails to
perform, it means it is dangerous and harmful for the consumer.
e. To discontinue the unfair trade practice: The Forum may give directions
as to not continue the unfair or restrictive trade practices and not repeat
the same. All acts i.e. false representations of goods and their standard,
quality, quantity, grade, composition, style, model, condition,
performance, character, warranty, guarantee etc fall under the category of
unfair trade practices. Moreover, the restrictive trade practices include
price manipulation, delivery conditions of goods, free flow of supply, etc.
f. To not offer hazardous goods for sale: The opposite party may be directed
to remove back the hazardous goods from the market that are offered for
sale.
Proceedings before the forum shall be administered by the President of the
Fora with the help of a member 35. The President and the other member shall
there by conduct such proceedings de novo. Hence, a medical practitioner,
nursing home, hospital, against whom a complaint has been lodged and has
been found to be negligent may be ordered by the consumer forums to do any
one or more of the following:
a. To pay such amount as may be awarded by it as compensation to the
patient for any loss or injury suffered due to negligence in medical
service,
34
The word ‗Deficiency‘ means any fault, imperfection, shortcoming or inadequacy in the
quality, nature and manner of performance which is required to be maintained under any law
or has been undertaken to be performed by a person in pursuance of a contract or otherwise
in relation to any service.
35
Section 14(1) of the Consumer Protection Act

34
 b. Return to the plaintiff the charges paid by the patient,
c. To remove the deficiencies in the medical services provided and
d. Replace defective goods like splint, braces, glucometer, crutch , lens
etc., with new goods of similar description, which shall be free from
defect.36

6. Appeal from the District Forum:

If a consumer is aggrieved by the award passed by the District may
file an appeal before the state commission within thirty days of such order.
Provided that, the State Commission may entertain an appeal after expiry of
thirty days if satisfied that, there was sufficient cause for not filing it within
that period. Provided further that, no appeal by a person, who is required to
pay any amount in terms of an order of the District Forum, shall be
entertained by the State Commission unless the appellant has deposited in the
prescribed manner fifty percent of that amount or twenty five thousand
rupees, whichever is less.
3.2.3.2. State Commission:
1. Composition of the State Commission
The State Commission is established at the State level and is the
authority above the District Forum for consumer dispute redressal agencies 37.
The State Commission shall consist of a person who is or has been a Judge of
a High Court as President and not less than two other members. The
remaining members of the State Commission shall be individuals not less
than 35 years, being graduates and have the ability, integrity and standing and
having adequate knowledge or have experience of at least 10 years in dealing
with, problems relating to Economics, Law, Commerce, Accountancy,
Industry, Public Affairs or Administration. The certain persons 38
shall be
disqualified to be appointed as either President or the member of State
Commission.

36
S. Jagdish and v. Bhushan, Medical Negligence and compensation , p.228( 3 rd ed., 2007).
37
Section 16 of the Consumer Protection Act.
38
Same as Section 10 ,Consumer Protection Act.

35
 It is important to note that in case of appointment of members of the
State Commission it is mandatory that more than 50 % of the members shall
be from persons having a judicial background and one of them shall be a
woman. Every member of the State Commission is appointed for a term of
five years or up to the age of 67 years, whichever is earlier 39.Prior to
amendment of 2002, re-appointment on the recommendations of the selection
committee. Salaries, or honorarium and allowances of the members are
decided by the State Government and different states have different rules
pertaining to the present matter.

2. Jurisdiction of State Commission:

All matters that fall under the jurisdiction of State commission can be
entertained by the State Commission. The State Commission jurisdiction may
be read as Pecuniary Jurisdiction, Territorial Jurisdiction, Appellate
Jurisdiction and Revisional Jurisdiction. All matters wherein the value of
goods and services exceeds Rs. 20 lakhs shall be entertained by the State
Commission.
For territorial jurisdiction, all complaints coming of the State or its
geographical limit shall be decided by State Commission. Moreover, all
appeals filed against the order of the district forum shall be entertained by the
State commission. Such appeal shall be made within 30 days from the date
when order was communicated to appellant.
For revisional jurisdiction, the State Commission may seek records for
any dispute pending before the District Forum, if the district fora have failed
to pass order as authorized to do so, not exercised its jurisdiction or acted
illegally. Furthermore, the State Commission may exercise the revisional
jurisdiction only when any wrongdoing is committed in the orders of the
district forum. The state commission is also empowered to transfer a matter
from one district forum to another on the grounds as justified.
A prescribed procedure is to be followed by the State Commission
when they have to deal with complaints.40 The State Commission may amend
the procedure if necessary. If an ex-parte order is passed, the aggrieved party

39
Section 16(3) of Consumer Protection Act
40
Section 18 of Consumer Protection Act

36
may request for reviewing the same in the interest of justice. The State
Commission may also review if an error in judgment is apparent.

1. Powers of State Commission:

The State Commission has powers as that of the civil court. 41
Additional powers i.e. call for accounts, books, documents, commodities,
required for the purpose of inspection are entrusted to the State
Commission42, and Section 14 empowers the State Commission to make an
order. The powers exercised by District Forum under its territory, are also
applicable to State Commission under its jurisdiction.

2. Orders of State Commission:

The State commission passes orders like that of the Civil Court and
the same are final. The said order shall be signed jointly by the president and
one member who is a part of the order. Moreover, if difference of opinion
arises between the president and the member the third member shall give his
opinion, accordingly the decision of majority shall be final. An appeal against
the order of the state commission shall be made before the National
Commission. If in any case the proceeding at any stage cannot be conducted
further, due to the absence of any one of three members, rest of the members
shall carry on the dismiss the case. The state commission shall follow the
rules while adjudicating the cases, or such order may be not have a valid
effect. If the members of the Commissions have difference in their opinion or
points, such differences are to be bridged by majority of members, if there the
same is equal, the differences are to be referred to other members and
accordingly decisions are to be taken by majority of members, the same shall
be final and binding.

3. Appeal against the Orders:

Any party aggrieved by the order of the State Commission may file an
appeal against it before the National Commission within 30 days of such

41
Section 13(4) of the Consumer Protection Act
42
Rule 10 of the Consumer Protection Act

37
order; the same may be extended further for 15 days. Any appeal before the
State and National Commission shall be disposed within 90 days from the
date of its admission. An appeal is adjudicated by the National Commission,
when the requisite fees as prescribed is been filled by the party, i.e. 50% of
the amount or Rs. 35000/- or which is less. If no appeal is made before any of
the forums, then their order is termed to be as final. All orders of the
Commissions shall be termed as a decree passed by the Civil Court, and if the
same is not complied by any party, such party shall be imprisoned for one
month or three years or penalized for amount of Rs. 2000/- to Rs. 10,000/- or
with both.
3.2.3.3.National Commission:
1. Constitution of National Commission:
The National Commission comprises of a President and not less than
four members. The Central Government may determine the maximum
members. The President of National Commission shall be one who is or has
been a judge of Supreme Court and must be appointed by the Central
Government in consultation with the Chief Justice of India. Moreover, the
members of the National Commission shall be appointed by the Central
Government on the recommendations of selection committee, who have the
qualifications as under:
a. a person who is above 35 years with graduation and
b. having the ability, integrity and standing and having adequate
knowledge,
c. Or experience of at least 10 years in dealing with, problems relating to
economics, law, commerce, accountancy, industry, public affairs or
administration.
The following are to be disqualified of member of National Commission is
same as the District forum and state Commission.

2. Jurisdiction of National Commission:

Working hours of National Commission are similar to that of the Central
Government. The sitting of the National Commission, as and when necessary,
shall be convened by the President. The bench exercises powers and authority

38
of the National Commission. The bench comprises of President with one or
more members as the President may deem fit.
The jurisdiction of National Commission is categorized in five elements viz.
pecuniary, territorial, appellant, revisional and review jurisdiction.

a. Pecuniary Jurisdiction: As National Commission is the Apex body, it

is empowered to adjudicate matters for a value of more than Rs. 1
Crore.
b. Territorial and Appellant Jurisdiction: The National Commission is
entitled to entertain matters all over India except for the state of
Jammu and Kashmir. The National Commission is empowered to
entertain appeals against the orders of the State Commission and the
same to be done within 30 days of the order so passed.
c. Revisional and Review Jurisdiction: The records can be called for by
the Commission pertaining to any dispute which has arisen or is
pending before the State Commission, if the State commission has
failed to exercise jurisdiction which it was empowered to; or acted
illegally while exercising its jurisdiction. Also if such order so passed
led to any wrongdoings. The national Commission may also review
orders, if any error in judgment is apparent.

3. Procedure to be followed by National Commission:

There is a procedure to be followed by the National Commission to deal with
consumer complaints43. The National Commission shall follow the procedure
as stated under sections 12, 13 and 14 of Consumer Protection Act. The
National Commission is entrusted with the powers of Civil Court, Criminal
Court, executive and supervisory powers. The ex-parte orders may be passed
by the National Commission against the opposite party and the same may be
revoked if requested by the opposite party on the grounds of natural justice.44
Also an order may be reviewed by the National Commission as well. The

43
Section 22, Consumer Protection Act,1986.
44
Section 14(3), Consumer Protection Act,1986.

39
National Commission may suomoto or an application so filed before it may
transfer the any complaint pending before the state commission or district
forum, in the interest of justice, to any other state commission or district
forum.
On receiving a complaint, the National Commission decides whether a prima
facie case of negligence is made out at the notice stage. It takes a decision
whether the Rs.1 crore or more compensation sought is justifiable or not.

4. Appeals against the Orders:

An appeal may be filed by the aggrieved party against the order of the
National Commission before the Supreme Court within 30 days from the
passing of such order. An appeal may be entertained when the prescribed fees
of 50% or as stated by the National Commission is deposited. If no appeal is
filed against the order of the National Commission, the order so passed by the
National Commission shall be final.

5. Finality of Orders and Enforcement:

The order of the National Commission are deemed to be as that order passed
by the Civil Court, and the same are final and binding if no appeal is filed
against the same. All the order of the Commission shall be signed by the
President and two members who are a part of the order. If difference of
opinion arises, the matter to be referred to the third member and the decision
be given by majority and the same shall be final.
All orders of the Commissions shall be termed as a decree passed by the Civil
Court, and if the same is not complied by any party, such party shall be
imprisoned for one month or three years or penalized for amount of Rs.
2000/- to Rs. 10,000/- or with both.

3.3 Burden of proof and causation :

3.3.1. Causation:
Generally the burden of proof of negligence lies with the complainant. In the
case of medical negligence law requires a higher standard of evidence. In

40
cases of deficiency in medical service the patient must establish her or his
claim against the doctor.45Burden of proof has two essentials; one is causation
i.e. connection between action and injuries, second is proving this causation
by submitting proper evidence.
Medical negligence is easy to allege but extreme difficult to prove.
For establishing medical negligence there must be satisfactory evidence that a
medical practitioner or hospital has not taken reasonable care while treating
the patient and therefore patient has suffered injury. There must be sufficient
link between breach and the injury in order to recover damages. Along with
this there are number of other doctrine which used as defence by medical
practitioners.
The National Commission and Supreme Court in different judgments
held that a charge of medical negligence against a doctor stood on a different
footing from a charge of negligence against a driver of a vehicle. The burden
of proof is greater on the person who alleges negligence against a doctor. 46 In
Lamb v. Camden London Borough Council,47 Lord Denning M.R. stated that,
the truth is that all these requirements; duty, remoteness and causation are all
devices by which the court limits the range of liability for negligence.
The Supreme Court held that, ―For establishing negligence or
deficiency in service there must be sufficient evidence that while treating the
patient a doctor or hospital has not taken reasonable care. Duty of hospital
and doctor to take reasonable care varies from case or a hospital has
undertaken. If doctor has performed his duties to the best of his ability with
due care and caution then Court would not impose liability on the part the
part of doctor.48
Complainant must allege specific act of negligence and prove how
that amounts to negligence. He has to allege which action of the opposite

45
K .K .S .R .Murthy, Medical Negligence and the Law,Indian Journal of medical
ethics ,available at http://ijme.in/articles/medical-negligence-and-the-law/?
galley=html last seen 16-11-2017. 341 K. Gupta, The Standard of Care and Proof in
Medical Profession, A Shift from Bolam to Bolitho, National Capital Law Journal
1(2011)
46
Ibid .
47
625 (CA) (1981, QB).

48
Achutraoharibhankhodwa Vs. State Of Maharashtra And Others2006 (4) CPJ 8 (SC).

41
parties was not as per accepted medical practices. This has to be supported by
expert evidence or medical literature on the subject49. In absence of any expert
evidence to sustain the allegations of negligence and not following the
established practice complaint is liable to be dismissed50.It is for the
complainant to allege and prove negligence with the help of expert evidence
or by producing medical literature 51.A doctor is not to be held negligent
simply because something went wrong. It was held that the onus of proving
negligence and the resultant deficiency in service was clearly on the
complainant.52 Negligence has to be established and cannot be presumed.53
In order to prove medical negligence against the doctor a complainant
has to establish the following-
i. The professional has reflected lack of care and skill ii. The
consequence of this lack of care and skill has resulted in the damage of
the complainant.
iii. The injury caused to the patient is directly connected to the negligence
displayed by the professional.54

However, the burden of proof is not always fixed. It keeps shifting from the
plaintiff to the defendant. The initial burden of proof rests with the patient,
but sometime depending upon the circumstances of the case, the burden may
lie on the medical practitioner. When the medical practitioner makes a
statement to counter the statement of the patient then it is his responsibility to
prove the accuracy or truth of the statement. 55It was observed by Gujarat
SCDRC that ‗generally burden of prove on the complainant to prove that act
of the doctor was negligent in nature. However, the details of the operation
and findings in the course of operation are within the special knowledge of
the concerned doctor. It is, therefore , for the doctor to explain satisfactorily

49
K.S.Bhatia vs. jeevan hospital and another, 2004 CTJ 175 (NC) (CP).
50
Upasana Hospital and another v. S.Farook, 2007 CTJ 603 (NCDRC).
51
K.S.Bharti v. Jeevan Hospital and another, 2004 CTJ 175 (NC) (CP).
52
Calcutta Medical Research Institute v.Bimalesh Chatterjee (1999) CPJ 13 (NC)
53
Kanhaiya Kumar Singh v. Park Medicare & Research Centre(1999) CPJ 9 (NC)
54
Supra note 161 at 24
55
Supra at 316 at 72

42
as to what he had done in the course of the operation and if the operation was
not successful, it is for him to explain as to how it so happened.‘56

3.3.2. Res ipsa loquitur.

Generally, the burden of proving negligence on the patient, but there are some
exceptions to this rule. If the negligence is to such extent that it is obvious,
then the physician has to prove that he is not negligent. In these
circumstances the doctrine of Res ipsa loquitur can be invoked.
The meaning of this Latin phrase is- ‗the thing speaks for itself‘. Res ipsa
loquitur allows plaintiffs to use circumstantial evidence to infer negligence.
This doctrine has been initially used in the landmark English case Byrne v.
Boadle353. In Byrne, a man had been outside a flour dealer when a barrel of
flour fell out of a window and struck him, knocking him unconscious.
Although the man was unable to present any direct evidence of negligence,
the court invoked res ipsa loquitur and inferred negligence against the flour
company based on the surrounding circumstances.57
When this principle is applied, complainant does not become
responsible to provide evidences against the professional whereas, it becomes
the responsibility of the defendant to establish that the damage caused to the
patient is not due to the act of his negligence. Here a complainant only brings
forward the act of negligence and the damage caused.
Then it is the defendants‘ duty to prove his side. 58The defendant may
take a stand that due care was provided to the patient but the injury caused is
due to error of judgment but not out of negligence. 59
Mr.Michael Jones in his
treatise on Medical Negligence explaining the principle of Res ipsa loquitur
observed that it is essentially ‗an evidential principle intended to assist a

56
AphraimJayanandRathod v. Dr. Shailesh shah, 1996(1)
CPR547 (Guj) 353 2 H. and C. 722, 159 Eng. Rep. 299( Court
of the Exchequer 1863).
57
Tucker Law Group , Burden of Proof And Res Ipsa Loquitur in Medical Malpractice Cases
, available at http://www.tlgattorneys.com/news-resources/burden-of-proof-and-res-ipsa-
loquitur-in-medicalmalpractice-cases/ last seen on 16-11-2017.

58
Ramachandran, Law relating to proof of Negligence P.. 358( 1st ed., 2010).
59
Supra note 351 at p 326

43
claimant who, for no fault of his own, is unable to adduce evidence as to how
the accident occurred‘.60
Mahon v.Osborne 61was one of the first English cases where the same
doctrine was applied in a medical negligence case. In this case, a resident
surgeon carried out an abdominal operation with the assistance of an
anaesthetist, a theatre sister and two nurses. The operation was rather a
difficult one where the surgeon was supposed to remove certain number of
swabs from the patient‘s body. However, after the operation, later it was
revealed that one such swab was left in the stomach and was not attended by
the surgeon as it was below the liver. The patient died after two months and
the patient‘s mother complained against the surgeon under this principle. The
court upheld the claim made by the mother and the surgeon had to prove that
it was not his act of negligence and to explain how the swab came to be left in
the body of the patient.

60
Mrs. S. V Rani. Consumer Protection Law- Medical Negligence , Consumer Law-
Redressal Mechanism , P.no 235 see also M. Jones, Medical Negligence p.( 4th ed., 2008)
61
(1939) 1 E.R. 55

44
 CHAPTER IV

COMPARATIVE ANALYSIS.

.Introduction:
It was during the period of 19th century where the English common
law has the origin of current medical malpractice law. English common law
not only makes reference to the legal system of England and Wales but also
creates a strong base for the jurisprudence in the United States, and also for
number of countries belonging to the Commonwealth. 62 The countries have
exported at the time of the British Empire. The law and legal systems that
gets developed over a period of time because of the decisions of courts and
judges is the common law, which is not similar to the laws developed only
out of the legislative statutes or executive decisions. In this chapter
researcher an introduction to the basic concepts of medical negligence, court
structure, and tribunals goes along with it and the procedures that govern
medical negligence litigation in the United States and United Kingdom.
Similarly researcher also focus on mode of awarding compensation, role of
consent in medical negligence litigation in the United States and United
Kingdom
Medical Negligence in UK
Every year, hundreds of millions of people receive medical treatment
of varying degrees of seriousness, and the vast majority of them are treated
with the utmost care, professionalism and effectiveness. No matter how high
the standards of medical and health care are in the UK, Medical Negligence
is not something uncommon in this country. Every year, a large number of
people become subjected to clinical negligence in the UK. The law of the
country, however, provides the victims of clinical negligence to go to the
court of law and file Medical Negligence claims. The only outcome for a
claimant that brings a successful clinical negligence claim is an award of
damages.

62
S.MSpeiser,American Law of Torts, Vol. 4(1987)15.

45
 In an influential decision of Donoghue v.Stevenson63, the ‗neighbour
principle‘ was established. The doctor‘s duty to care for his patient has been
in existence in English and Scot law from the very beginning. The
‗neighbour principle‘ states that proper care is to be taken to treat patients by
the doctors. The tripartite test of Caparo v.Dickman439 is satisfied by the
relationship of the Doctor and the patient. Wherein the loss of the victim
shall be foreseen, there must be high proximity between the doctor and the
patient, that the doctor has applied ‗fair, just and reasonable‘ care while
performing his duties.
Medical Negligence in UK
Medical malpractice is defined as any act or omission by a physician
during treatment of a patient that deviates from accepted norms of practice in
the medical community and causes an injury to the patient. Medical
malpractice can be considered as a branch of tort law that is related to the
professional negligence.64In the USA first recorded medical negligence case
was filed in 1794.65
It is a requirement in the country of United States that a patient who
files a complaint must follow the following four elements to make sure that
claim of medical malpractice66 is successful. These elements are- (1) there
must be existence of a legal duty of the doctor to provide care or treatment to
the patient; (2) a breach of such legal duty on the part of the failure of the
treating doctor to remain bound to the standards of the medical profession;
(3) relationship between such breach of duty and injury to the patient is
causal (4) there is existence of damage on the part of the patient that flow
63
AC 562(1932
House of Lords) 439
2AC 605(1990 House
of Lords) 440 2 All ER
118(1957 QBD).
64
G.E.White. Tort Law in America: An Intellectual History. New York, (2003)

65
The patient‘s husband sued Dr. Cross, a Connecticut physician after the patient died as a
result of postoperative mastectomy (surgical removal of breast) complications three hours
after operation. At the end it was found that the defendant had not only broken, but also
violated his undertaking and promise to the plaintiff to perform the said operation skillfully
and safely. The jury found the defendant liable and awarded damages of 40 pounds for loss
of companionship. Referred in Z.N. Kain ,‘ the national practitioner data bank and anesthesia
malpractice payments 103(3) anesthesia and analgesia , 6469.(2006).
66
G.J GittlerandE.JGoldstein, The Elements of Medical Malpractice: An Overview.
(1996)p.1152–1155.

46
from the injury in such a way that the redress may be obtained through
judicial system.
Legal system pertaining to medical negligence in India, UK and USA:
Comparative analysis
After analysing the provisions relating to Medical Negligence in India,
UK and USA, researcher has pointed some of the following conclusions:
Three elements of Negligence– duty, breach of duty and resulting damage are
same in India, UK and USA.
The cases that are related to medical negligence have to be looked at in
a different manner. They are not as similar as that of occupational negligence.
If there is just a simple lack of proof or an error of judgment will not be equal
to the amount to professional negligence.
The two situations mentioned where negligence was a fact as the
professionals carried out the act when they actually did not possess the
adequate and required skill to treat the patient. And second they possess
adequate and required skill but they not exercise it.
There are two health systems in UK i.e. NHS and Private medical
practitioner. For Litigations of NHS separate litigation authority was
constituted i.e. NHS Litigations Authority. Even though in India two health
system i.e. government and private but litigation relating to both system
regulated by same enforcement machinery. There is no separate enforcement
machinery to regulate litigations of government health system, like UK.
In UK there are Medical Defence Union or Medical Protection council
incorporated for indemnify medical practitioners or for this purpose insurance
taken place in open market by medical practitioners. But in India this system
yet not incorporated.
Rules relating to vicarious liability and primary liability of hospital are
equivalent in both country i.e. UK and India.
Medical or clinical record and concept of informed consent has same
value in UK and India.
Period of limitation for filing case of alleged medical negligence in
UK is 3 years from the date of cause of action arise. Whereas in India

47
complaint alleging medical negligence filed before consumer forum within 2
years from the date of cause of action arise.
In UK legal aid is not provided to the victim of medical negligence
after commencement of legal aid, sentencing and punishment of offenders Act
2012. It is only available to child victim. But in India scheme of legal aid is
available to the victim of medical negligence also depending upon their
economic status.
In UK there are conditional fee agreement integrated between parties
of case and their Lawyer. According to this agreement if patient not win the
case he has nothing to pay his lawyer. Therefore lawyers accept only those
cases where there is chance of more success. Therefore on the basis of expert
opinion they decide to accept the particular case or not. But this agreement
system is not prevailing in India.
As we know USA is federal Country, therefore there are state
legislatures to regulate the rules regarding medical negligence. But in India
health matter provided under III list i.e. concurrent list. State legislature can
enact an Act or frame a scheme on health matter. Yet, liability of medical
practitioners for medical negligence is provided under union legislations.
In USA there is one procedure before litigation of suit i.e. pre-trial
review by Jury. They help the parties to settle the dispute by mutual
understanding rather than litigation. But in India such system is not available.
For cases relating to medical negligence ADR system also accepted in
some state in USA. Physicians should settle their dispute in an arbitrary
manner instead of legal proceeding. In India dispute relating to medical
negligence is not settle by ADR system.
Limitation period for institution of medical negligence cases are
differed by state to state. Most of the state adopts 2 years period and time limit
is flexible in case of injury to children. As stated earlier in India complaint
alleging medical negligence filed before consumer forum within 2 years from
the date of cause of action arise.
Major difference between two legal systems in on the point of
compensation. In USA there are limits on damages under the heading of
‗Legislated Cap‘ on compensation for non –economic damage. In India award

48
of amount of compensation is at the discretionary power of the court. There is
no ‗Legislated Cap‘ on compensation. But now in present scenario Medical
Associations demand it.
In USA also like UK Contingent fee system prevail. Lawyer who is
from the side of patient may not receive the payment after the patient loses the
case. If win then he will take in proportionate to percentage of award.
Therefore Lawyers will accept cases that they know they are likely to win.
And they claim for large compensation. Indian legal system has not regulated
this policy.
In USA some state legislatures permit ether party to elect that damage
award paid periodically rather lump-sum. In Indian legal system amount of
compensation should be paid lump-sum only.
In USA along with amount of compensation some recoveries made
from other collateral sources, like Tennessee, payments by government
programs. Patient compensation fund incorporated in USA. Many states take
initial to subsidize such funds. Some time it includes surcharges on the
doctors as a part of general revenues. In India though there are number of
NGOs for the betterment of victims of medical negligence , but at government
level yet such policies not framed .

49
 CONCLUSION AND SUGGESTIONS
Any object or subject has a history and to understand it correctly, one
must study its history. Before discussing status of liability for medical
negligence it is important to know what was provision available at past.
Historical period divided into three phrase i.e.
1. During Ancient and Medieval Period,
2. Pre constitutional period ,and
3. Post constitutional period.

Since the ancient times, certain duties and responsibilities have been cast on
persons who adopt this sacred profession. Issue of Medical Negligence could
be found in Islamic Law, Mosaic Law, CharakaSamhita, SusanthaSamhita,
Manusmriti, Kautilya‘sArathashasra, yajnavllga‘s, smriti. Medical Negligence
was considered more as a crime than as a tort. In earlier civilization a doctor's
hands were cut off if the patient died during an operation. With the progress of
civilization, Medical Negligence was increasingly treated as a tort by the
judiciary so that the victim can be provided with damages. The sacred books
of Ramayana and Manusmriti talk about Medical Profession, treatment and
penalty for Medical Negligence. According to it Medical Professional was
liable to pay fine or to undergo corporal punishment including death penalty
for Medical Negligence.
During the constitutional period of India efforts were undertaken by the
Government of India to protect the interest of the common man.The main
objectives of constitution are removal of all forms of inequality, ignorance, ill-
health and to bring about better standard of living and health for all the
citizens. Constitution of India provides Right to Health under various
fundamental right and Directive Principles. Further Judiciary extant the scope
of Right to Health under several cases. Several regulatory bodies were
established to monitor and maintain the standard of medical professional
education and medical ethics all over the country. The important bodies‘ are-
The Medical Council of India (in addition to the Medical Council of
India each state has its own state medical councils).
The Nursing Council of India.
The Dental Council of India.

50
 Pharmaceutical Council of India.

Along with, Constitutional provisions other legal avenues available to the

victims of Medical Negligence. They are:
1. Law of Tort.
2. Law of Contract.
3. Indian Penal Code
4. Consumer Protection Act.
5. Medical Council of India.

It is a fact that the medical organizations are accountable for the

deficiency in providing the medical services and care. From the above
discussion it is clear that victim of medical negligence who intend to take
action against guilty medical practitioner or hospital may resort to different
legislative measures including provisions available under Constitution of
India. The indignant or aggrieved of medical negligence, he or she may
approach the Supreme Court or High Court, by way of writ petition, to seek
remedy against the negligence of the hospital authorities or doctors. However,
the said legal remedy can be used as a last option when all the remedies have
been utilized by the victim against the doctor and or hospitals. Except in
emergency cases a patient cannot claim medical service as a matter of right.
Supreme Court by various pronouncements expands the scope of Article 21 of
the Constitution of India and Emergency medical service has been interpreted
as a fundamental right within the scope of Article 21 of the Constitution of
India. Supreme Court of India held that if public health institution refuses to
treat patient in emergency situation its violation of right to life provided under
Article 21 of the Constitution.
However there is limitation on the applicability of Article 21 of the
Constitution. Fundamental right to approach the Supreme Court under Article
32 or the High Court under Article 226 of the constitution for the enforcement
of Article 21 is generally available against public health institution and not
against private health care sector. If a private health institution commits any
breach of duty towards patient i.e. negligence in treatment or deficiency in
other medical services , the victim will have to approach to Civil court under

51
 Law of Tort, Law of contract or Consumer Protection Act , or to Criminal
court under Indian Penal Code for appropriate remedy. To get remedy under
Law of Tort, victim has to prove ingredient of negligence i.e. whether the
doctor was under the duty to take care of the said patient, that he has
committed breach of his duty, and the said act has caused damage to the
patient. Whether the act of the doctor shall resemble with the standard of care
in particular circumstances. Simultaneously court also recognized risks, which
are inherent in surgical operation. The Judiciary rightly pronounced that
professional men should possess a certain minimum degree of competence
and should exercise reasonable care in discharging their duties. According to
view of judiciary charge of professional negligence is of serious nature.
Cases initiated against hospitals, doctors and medical care
organizations, before the Civil Courts considering their territorial and
monitories jurisdiction. But it is not easy to avail remedy under civil court, as
the higher the amount of damages, more will be the court fee. Though the
aggrieved person is in a position to pay the requisite fees for suit against
Medical Negligence, the prolong procedure and the required evidence for the
same, will cause mental stress and pain to the petitioner. Likewise remedy for
Medical Negligence cases under Law of Contract available only when there
was specific contract between Doctor and Patient. If doctor had given
guarantee to cure the patient then and then only he can take action against
doctor for breach of promise.
The said forum has been effective and helped the system to decide the
cases of Medical Negligence with minimum legal formality and move toward
the well-established forum in India. However it has some integral lacunas.
1. According to Section 10 of the Consumer Protection Act constitution of the
District Consumer Redressal Forum is (1) A person who is or has been or is
qualified to be a District Judge; (2) A person of eminence in the field of
education , trade or commerce (3) A lady social worker. Likewise Section
16 lays down the composition of a State Commission which is to consist of
(1) A person who is or has been a Judge of the High Court (2) two other
members (one of whom shall be a woman) being persons with ability,
standing, having knowledge and experience in specialty fields. But
unfortunately none of the members have the knowledge required to

52
 understand the complexities of such medical cases. However, it is not meant
to say a judge should become a doctor, but a judge should have knowledge
of medical literature when he is deciding Medical Negligence cases.

2. It has been expressed by the Apex Court, National Commission and the State
Commission that if any complaint involves complexities, shall restrain
consumer form adjudicating the same in summery manner. Such cases
where there is an issue of facts and laws and is need of evidence and to be
examined in detail, required precise corroboration, shall be tried by the Civil
Courts. In certain cases the treatment of the doctors is challenged by the
complainant, or any operation performed by the doctor has failed due to the
negligence of the doctor, due to reading wrong history of the patient, such
cases require precise evidence and documents from experts, and thus the
same cannot be tried in the summary proceedings.

3. According to the provision of consumer protection Act complaint can be filed

by consumer associations. But number of associations is neither adequate
nor as active as they ought to be. Even the existing number of associations is
existing only in city and semi- urban areas. The rural population who are
mostly illiterate, poor and needy remains untouched by any such
associations.

4. Similarly one Consumer Protection Council for each State is too insufficient
to carry out the objects for which they are constituted.

5. The Consumer Protection Act do not cover the services provided by the
government hospitals or charity institutions/ hospitals, for free to patients.
Even, the medical officials/ professions, who conduct free services, are
exempted from the application of the law of Consumer Protection. The
needy people who are unable to take the treatment in good hospitals of the
private section, rush to institutions run by the government hospitals and

53
 charitable organisations for medical treatment, however, they cannot seek
remedy before the Consumer Forum for the malpractices and negligence of
the doctors who work under government hospitals or charity institutions.
Therefore basic object of the Act itself not fulfilled, and once again it is
prove that socio economic justice for the poor people is far from reality.

6. It is seen that most of the times, the judiciary is not knowledgeable in the
medical field and they tend to rely on the evidence provided by experts.
However, the testimony so provided by the experts may not be true, or the
doctors may support their colleagues rather support the case. In such cases,
it becomes difficult for the judges to enumerate the innocent side in
complicated medical cases, thus leading to acquittal for the offender.

7. It‘s a very complicated and difficult for the patient to prove injury caused to
him because of negligence act of Doctor. Moreover, if victim of Medical
Negligence or appellant argue case in erroneous direction , in many cases
commission failed to direct correct direction to the appellant. Even in some
cases there is deficiency in service by the Consumer Form itself.

8. The object behind enactment of Consumer Protection Act is to deliver speedy

justice with nominal fees. But now a days Consumer fora is on the same line
of traditional Court.

SUGGESTIONS
1. To make awareness among the doctors and their staff about relevant
laws applicable to medical service and Medical Negligence and
precautions to be taken while rendering medical service to the patients.
This can be done through continuous learning programmers by the
Medical Associations. At the college level itself it was inculcated in
the minds of upcoming doctor importance of value of life and their
profession in the society. Their aim should be protect the lives of the

54
 people. They should act as life protector and not businessmen. In short
we have to adopt are ancient view i.e. doctor are next to god.

2. Simultaneously there should be awareness among patients regarding

their rights and importance of health. Patient should be aware about
remedies available to them under different Laws if there is violation or
breach of their rights.

3. Centre of attention should be fiduciary relationship between Doctor

and patient rather than service provider and consumer. Hospitals
should be treat as health care centre and not as industry or place of
business.

4. The inadequate services so provided shall be monitored by the Union

Government in medical hospitals, institutions, nursing homes, etc.
who fail to provide to quality services and maintain the standards of
medical profession. There must also be scores or accreditation for the
hospitals, due to which they may also strive to maintain their standards
and thereby provide good medical services, treatments in all the
centres.

5. Most of the doctors while working as a Government servant also carry

out their practice privately for making money. In such cases, neither
the Government, nor the doctors suffer, but the suffering is borne by
the patients. They are never available during emergency thus causing
danger to lives of the patients. Hence, the State shall withhold medical
practitioners from conducting personal private practice and focus on
one job at a time.

55
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3. Grubb Andrew.Principles of Medical Law, Oxford University

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4. Singh Avtar.Law of consumer Protection (Principles and

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4th ed. 2005

5. Ballentine’s Law Dictionary, Lawyers Coop Pub,3rd Ed. 1969

6. Beauchamp.Informed Consent, Medical ethics, 1989

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